The H-1B program allows non-U.S. citizens a legal way to work in the United States if conditions are met by the employee and employer.

The two most critical conditions are:

The employee must be a professional level worker with a bachelor's degree (or equivalent); and

There must be insufficient U.S. workers for the type of work the employee will be performing (qualifying positions are generally in the fields of IT, hotel management, physical therapists, and other white collar positions).

Federal regulations govern the H-1B program (20 C.F.R. § 655, for example) to ensure that the employees are getting sufficient protection from their employers. To get approval for a particular employee, the employer must file a Labor Condition Application ("LCA"), which specifies the wages that will be paid to the employee (annually or hourly), whether the employee will be full-time or part-time, the duration of the employment, and other details related to the employment and employer. In some instances, employers are not complying with the regulations, which often results in the employee not being fully compensated and/or the employee being charged expenses for which the employer is obligated. The lack of financial compensation can take many forms, but here are a few examples:

No Work or “Benching”: employer does not have work or an assignment for employee, so employer decides to “bench” the employee or make the employee find an assignment or project and not the pay the employee during this period.

Different type of work: employer does not have the right type of work for employee, so employer decides to pay employee a lesser wage or not at all.

Underpayment: each job has a minimum wage requirement based on the profession and location, which is known as the "prevailing wage" and is used to calculate the wage on the LCA, so anything less than the wage on the LCA is underpayment.

Expenses: employers are not permitted to make unfair deductions from employee’s wages for costs associated with the H-1B or visa application, rent, travel, etc.

Required LeaveForm: employees are permitted to take voluntary leave, but the employer is not permitted to force the employee to sign a “voluntary” leave form to avoid paying wages to the employee.

Job Performance: employers are not permitted to withhold wages based on claims that employee’s performance was unsatisfactory.

Preventing Transfers to New Employers: Employers are not permitted to forbid employees from transferring to another employer or require the employee to pay a penalty for transferring.

If you are working in the U.S. as an H-1B employee and your employer has engaged in one or more of the above-mentioned practices, please contact Steven Krieger Law for a confidential consultation. The consultation will include a discussion of the specific facts surrounding your employment and how you may recover the wages you are owed.

An employee that was fired, terminated, or released from an employer is not automatically entitled to unemployment benefits. The Virginia Unemployment Compensation Act “…intended unemployment benefits to be paid only to those who find themselves unemployed without fault on their part.” Va. Empl. Comm’n v. Cmty. Alternatives, Inc., 57 Va. App. 700, 704 (2011) [citation omitted].

Virginia Code § 60.2-618 outlines six ways an individual can be disqualified from receiving unemployment benefits:

Leaving the employer “voluntarily without good cause”;

Termination for “misconduct connected with [the] work”;

Failure to apply for or accept suitable work without good cause;

Made a false statement in the past 36 months to obtain benefits;

Termination related to an “unlawful act which resulted in a conviction”; or

Termination was a “condition of the individual’s parole or release from a custodial or penal institution and such individual was participating in the Diversion Center Incarceration Program pursuant to § 19.2-316.3”

If an individual did any one of the above-mentioned items then the individual is disqualified from receiving unemployment benefits in Virginia.

This posting will focus on #2, so the relevant questions becomes how is “misconduct” defined?

“[T]he statutory term ‘misconduct’ should...be construed in a manner least favorable to working a forfeiture so as to minimize the penal character of the provision by excluding cases not clearly intended to be within the exception.” Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 401 at 707-08 (1992) (quoting 76 Am. Jur. 2d, Unemployment Compensation § 77 (1992)). In other words, misconduct should be defined in a way favorable to the terminated individual seeking benefits.

[A]n employee is guilty of ‘misconduct connected with his work’ when (1) he deliberately violates a company rule (2) reasonably designed to protect the legitimate business interests of his employer, or (3) when his acts or omissions are of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations he owes his employer. Branch v. Virginia Employment Commission, 219 Va. 609, 611, 249 S.E.2d 180, 182 (1978) (emphasis in original). “‘The Branch definition of misconduct has two prongs.’” Piggly Wiggly, 14 Va.App. at 705, 419 S.E.2d at 281 (quoting Israel v. Virginia Employment Comm'n, 7 Va.App. 169, 173, 372 S.E.2d 207, 209 (1988)). “The first prong defines misconduct as a deliberate violation of a company rule.” Id. “[T]he second prong contemplates actions or omissions of such a nature or so recurrent as to manifest a willful disregard of the employer's interests and the duties and obligations the employee owes the employer.” Id. “A forfeiture of benefits will be upheld only where the facts clearly demonstrate misconduct,” id. at 707, 419 S.E.2d at 282, and “[t]he employer bears the burden of proving [that] misconduct,” id. at 705, 419 S.E.2d at 280. Once that burden is met, the employee is disqualified for benefits “‘[a]bsent circumstances in mitigation’” of his conduct. Id. (quoting Branch, 219 Va. at 611-12, 249 S.E.2d at 182). “‘The burden of proving mitigating circumstances rests upon the employee.’” Id. at 705, 419 S.E.2d at 280-81 (quoting Branch, 219 Va. at 611-12, 249 S.E.2d at 182).

In other words, there are two types of misconduct:

A deliberate violation of employer’s rule that is designed to protects legitimate business interests, so an individual must have known about the rule or been warned about a rule and failed to remedy the conduct; or

Acts or omissions, one-time or recurrent, that demonstrate willful disregard of (a) the employer's interests; and (b) “the duties and obligations the employee owes the employer.” This may include: lack of confidentiality or honesty or loyalty or interest in the employer, insubordination, intoxication, multiple garnishments, and/or poor attendance.

If misconduct as described above is found, the misconduct may be excused if an individual can show mitigating circumstances that could include:

The misconduct was condoned by the employer because (a) the employer knew the misconduct was occurring but did not stop it; or (b) the employer gave the employee instructions to commit the misconduct;

The employee was provoked into the misconduct; or

Unequal application of the rule because (a) other employees engaged in identical behavior and were not sanctioned; or (b) the employer engaged in identical behavior.

Even if an individual has done nothing to be disqualified and may have already begun receiving benefits, the individual may be required to attend a hearing before the VEC. If a hearing is required, the individual will receive a letter titled “Claimant Notice of Telephonic Fact-Finding Interview.”

To ensure that these benefits are only distributed to qualified individuals, the VEC conducts hearings by deputy examiners to ensure that the unemployed applicant qualifies for benefits. Specifically, the VEC is gathering facts to determine “whether or not you were discharged or suspended for misconduct” based on the above-mentioned definition.

If you have received notice about a VEC hearing or would like to discuss representation, please contact Steven Krieger Law, PLLC for a consultation.

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